SZRZN v Minister for Immigration & Anor

[2013] FCCA 510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRZN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 510

Catchwords:
MIGRATION – Review of decision of RRT – where applicant a Jordanian Christian – where applicant had an affair with a Jordanian Muslim – where applicant previously beaten by family of Jordanian Muslim – where Tribunal found that applicant would suffer no harm if returned to Jordan – whether Tribunal applied characterisation of refugee criterion to both the applicant’s refugee claims and complementary protection claims – whether Tribunal applied incorrect test for complementary protection assessment – whether Tribunal took into account an irrelevant consideration – where applicant’s migration agent had submitted claims based on religious beliefs and imputed political opinion – where applicant’s political opinion imputed only – where applicant’s alleged fear of harm for religious or imputed political opinion couched entirely in context of fear of Jordanian Muslim’s family – whether Tribunal failed to take into account the full integers of the applicant’s claim.

Legislation:  
Migration Act 1958, ss.32(2)(aa), 36(2)

Selvadurai v Minister for Immigration & Anor [1994] 34 ALD 347
SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7

Applicant: SZRZN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2273 of 2012

Judgment of: Judge Raphael

Hearing date: 11 June 2013

Date of Last Submission: 11 June 2013

Delivered at: Sydney

Delivered on: 14 June 2013

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the First Respondent: DLA Piper

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2273 of 2012

SZRZN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Jordan who arrived in Australia around April 2011 on a visitor’s visa and on 14 May 2012 applied to the Department of Immigration for a protection (Class XA) visa.  A delegate of the Minister refused to grant a protection visa on 28 June 2012.  The applicant applied for review of that decision from the Refugee Review Tribunal.  He attended a hearing before the Tribunal and was represented (although not at the hearing) by a firm of migration agents.  On 3 September 2012 the Tribunal affirmed the decision not grant him a protection visa.

2. The basis for the applicant’s claim that he was a person to whom Australia owed protection obligations under s.36(2) of the Migration Act 1958[1] which includes the complementary protection obligations under s.32(2)(aa) were that between February and April 2011, whilst working at an amusement playground in Amman as a contractor employed to lay rubber flooring he became involved with another employee with whom he had a short affair. He is a Christian. The woman is a Muslim. After about two weeks the woman’s family found out about the affair which the woman advised offended their strict religious beliefs. The relationship ended but the applicant was assaulted and beaten badly by persons who he was unable to identify but who it has been accepted were in all probability relatives of the woman concerned. The applicant stated that following this occurrence he went into hiding staying with an old friend of his mothers. After about three months he managed to obtain a visitor’s visa to Australia based upon a false declaration that he intended to visit the daughter of that particular woman who was in hospital in Australia having been very severely injured in a motor vehicle accident.

   [1] “Act”

3. It is important to the understanding and determination of this case to note the claims made by the applicant for fearing to return to Jordan.  In the compliance client interview found at [CB 6], in response to question 22:

   “Are there any reasons why you cannot return to your home country?  What are those reasons?”

   The applicant responded:

   “I am a Christian and people have tried to kill me there.  I was hidden by people and that’s why I got a visitor visa to come to Australia.”

   In response to the question:

   “Are you willing to depart Australia?”

   The applicant responded:

   “I am not going back.  I don’t like to live with f**king muslim type people.  I will f**king kill them.”

   In a submission prepared by a migration agent, a form of statutory declaration, under the heading:

   “What I fear may happen to me if I return to Jordan”

   The applicant stated:

   “I fear I will be seriously harmed or killed by members of “N’s” family. 

   Under the question:

   “Who I think may harm/mistreat me in Jordan and why”

   The applicant responded:

   “I will be harmed by members of “N’s” family because I have offended their strict Muslim beliefs.  They know that I left with N and object to this on religious grounds.  They have clearly indicated their intention to kill me because I have offended their religious beliefs.”

4. In the delegate’s decision record it is noted at [CB 97] under the heading “IAAAS Agents verbal submission after Natural Justice Break”:

   “The applicant has been sought after by the girl’s family for being in a forbidden relationship which is breaching Sharia law.  He is at risk of facing significant harm if not serious harm.”

5. In a submission dated 30 July from the applicant’s migration agent and lawyers which states at [CB 167]:

   “1.We are instructed that Mr Applicant fears persecution in Jordan due to his religious beliefs (opposition to fundamentalist Islam) and his imputed political opinion.

   2.Mr Applicant will be perceived to oppose fundamentalist Islam for his relationship with a woman from a strict Muslim family outside of marriage.”

6. At [35] [CB 172] of the same letter it states:

   “35.As noted above, in the event that he is returned to Jordan, the applicant  fears he will be:

   a.   arbitrarily killed as a victim of an honour killing;

   b.   subjected to the death penalty; and/or

   c.    detained and tortured.

   The above forms of harm engage Australia’s complementary protection obligations.”

   At [39] [CB 174] the submission goes on to say:

   “39.The fact that:

   a.   The applicant has been significantly harmed in the past because of his non-fundamentalist Islam religious opinion;

   b.   he will continue to be perceived to be opposed to fundamentalist Islam upon his return to Jordan;

   c.   independent country information confirms that the types of significant harm feared by the applicant upon his return to Jordan are frequently visited upon those who have supposedly committed moral crimes;

   d.   there has been no improvement in the human rights environment in Jordan since his departure.”

7. At the Tribunal hearing the Tribunal asked the applicant at [T5]:

   “Member:Alright, tell me what you’re afraid of if you go back to Jordan now?

   Applicant:I am afraid of going back to Jordan of “N’s” family killing me or harming me if I go back to Jordan.  That’s what I am afraid of.”

8. A perusal of the balance of the transcript reveals that a substantive part of the hearing was taken up with consideration of the relationship between the applicant and “N” and the response to it.  There was no indication that the applicant had a fear of any other persons harming him either because of his religion or because of any perceived view of Islam other than “N’s” family.  At [T41] the member said to the applicant:

   “So what I have to think about is how likely it is that if you go back there now they’re going to get you which is why I asked you quite a few questions and asked Mrs Mansour questions about have you heard from the girl, has anybody heard anything from the family?  Do you think there’s any evidence that you can get about this family and what they might do?  I mean at the moment I can understand that you might be afraid, especially because of what you’ve been through but I have to come to some finding about the likelihood of that happening.

   So I suggest you think about it and talk about it with your adviser.  I mean, you know this girl, you know the name of this girl’s family.  Have you Googled him, the father?  How much do you know about this man?  See if you can find out anything that might give me some indication as to how likely it is that he’s going to follow this up.

   You’ve said previously or I think your adviser has said on your behalf that simply living somewhere else in Jordan is not going to help.  If these people were determined to catch up with you, then because of Jordan being a small country, a lot of people knowing other people, that it would be hard to hide.

   Do you want to say any more about that?

   Applicant:  (No verbal response)”

   And at T42 the member said:

   “Okay, all right.  Look, I don’t have any more questions but they’re the – the issue is an issue of am I satisfied that if you go  back there something terrible will happen to you?  And I don’t know yet, I have to think about it.  But now’s your chance to tell me anything else that you haven’t had a chance to talk about before.  So is there anything further you’d like to say?

   Applicant:  (No verbal response)

   Member:  Look, I’ll leave it for two weeks so that when you leave you might think of things that you wished you’d said or you might speak to your adviser and it might occur to you that you should have said something or other.  So this gives you an opportunity for that time, in the course of that time to actually –

   Applicant:  I mean, are you asking me to add onto what I’ve already said or add on my fear of going back?

   Member:  No, I understand your fear of going back, but you understand where I’m coming from?  I’ve got to consider how likely it is that you’re going to be seriously harmed if you go back, and anything that you think might help me make up my mind about that, anything objective apart from your fear - I accept your fear, I accept that you were beaten up, but it’s whether there’s a real chance or whether it’s likely that if you go back to Jordan this is going to happen?  That’s the issue for me.  So I’m giving you a chance to think about that and think about some other points that you might like to make, or your adviser might like to make.”

9. The applicant produced a statement from a witness Mr “HS” who was a friend of his and like him had been brought up in the United States before moving to Jordan.  In his statement “HS” states at [6] [CB 205]:

   “Before Applicant had ever even met “N” I had warned him of how dangerous it can be to get involved with any Muslim Jordanian woman.  I gave him the same advice my own family gave to me when I first arrived in this country.  All sorts of things can happen if you become involved with a Muslim woman.  The woman’s family may force you to change your religion or pay a huge bribe under threats of violence or force you into marriage…  It is a huge issue in this country and is taken extremely seriously.  Families go to war over these things.  People are killed in this country over these things.”

   Mr “HS” also indicated that the family was still looking for the applicant and he had information that three or four different men had been asking about the applicant’s whereabouts.

10. In its Findings and Reasons the Tribunal discussed the applicant’s claims.  At [104] [CB 230] it said:

    “[104]The applicant’s evidence has been generally consistent both orally and in writing, despite some inconsistencies about the duration of the relationship with the Muslim woman, and exactly how and when it began and ended.  However, the Tribunal found some important aspect of the applicant’s account lacking in credibility, as detailed below.”

11. In regard to Mr “HS’” evidence the Tribunal accepted most of this but said at [106]:

    “[106]The Tribunal has given little weight to the evidence submitted by the witness, Mr “HS” about the reasons for the attack on the applicant, or the chance of the applicant being harmed in the future for the following reasons.  Mr “S” is a friend of the applicant.  He made the statement after the applicant had given evidence at the Tribunal hearing, and is therefore likely to have been told by the applicant what he had already said in evidence to the Tribunal, and shaped his evidence to fit that that, and be generally supportive of the applicant.  Of more importance is the fact that Mr “S” knows little directly about the applicant’s experiences from the time of his alleged beating up until he left the country, apart from what the applicant has told him.  He does not know who beat the applicant up.  He does not know why he was beaten up, though he appear to have accepted what the applicant told him on this matter, since it also fit with his own beliefs and opinions about the dangers of being involved with Muslim women.  The witness did not know “N” or any of her family, despite being in the construction business, allegedly the business of “N’s” father.  He does not appear to have heard anything about “N” or her family following the applicant’s departure, despite his own and the applicant’s repeated evidence that Amman is a small place in which everyone knows what is going on.  The witness does not know anything about the people who have allegedly been looking for the applicant since his departure for Australia.”

12. The Tribunal then dealt with its other concerns about the witnesses evidence and their effect upon the Tribunal’s consideration of the applicant’s credibility before noting at [111] [CB 231]:

    “[111]The Tribunal found the applicant’s account of events to be less than convincing, though it accepts that he was the victim of a severe beating in Jordan.  It considers that there may be plausible alternative reasons for the applicant to have been beaten up in Jordan, but it has given the applicant the benefit of the doubt in accepting that he had a very brief sexual relationship with a colleague at his workplace, that her family found out about it, and that he was physically attacked as a result.  While the applicant has sought to make a case that the attack on him was motivated by religion, in that he is Christian and his sexual partner was Muslim, the Tribunal rejects this claim.  It finds that the applicant was attacked because he had a brief casual sexual relationship with a woman outside marriage, that her family were angered that he had done this, and that they sought to punish him for it.  The Tribunal is not satisfied that the essential and significant reason for the attack on the applicant was his religion as a Christian, or his religious beliefs as an opponent of Islam, or of Sharia law.”

13. After dealing with some other concerns it held with regard to the applicant’s evidence the Tribunal stated at [117] [CB 233]:

    “[117]On the evidence before it, the Tribunal is satisfied that the applicant was severely beaten in about January 2011.  It finds that the essential and significant reason for his beating was personal, in that the family of the applicant’s sexual partner, “N” were outraged that the applicant was in a sexual relationship with “N” outside marriage and without any apparent intent to marry.  The Tribunal further accepts that an element of the family’s anger was religious, in that the applicant was Christian.” 

14. The Tribunal then turned to consider whether there was a real chance that the applicant would face Convention based persecution if he returned to Jordan in the foreseeable future and noted that although the applicant had said that “N’s” family could find him anywhere in Jordan if he returned they had not made any effort to find him in the four months that he remained in Jordan after the incident.  It also noted that the applicant had not applied for protection for twelve months after he arrived.  It did not accept his excuse that he feared that he would be sent back to Jordan and took into account that substantial delay as it was entitled to do; Selvadurai v Minister for Immigration & Anor [1994] 34 ALD 347. The Tribunal concluded at [121] [CB 324]:

    “[121]On the evidence before it, the Tribunal finds that the applicant was able to live in Jordan for some months without suffering serious harm after an incident in which he was beaten, and claimed that he was targeted for killing.  The applicant has been unable to provide any convincing evidence that he has been pursued by anyone since he was beaten, despite his claim that he fears being seriously harmed, if not killed, by the family of a woman with whom he had a brief sexual relationship.  The Tribunal does not accept the evidence of the witness “HS” on this matter to be credible or reliable, as indicated above.  The Tribunal is not satisfied, on the evidence, that there is a real chance that the applicant will be harmed by anyone if he returns to Jordan in the foreseeable future.  It is not satisfied that the applicant has a well-founded fear of persecution in Jordan, within the meaning of the Refugees Convention.”

15. At [122] the Tribunal dealt with the claim for complementary protection:

    “[122]The Tribunal has found that it is not satisfied on the evidence that the applicant will be harmed by anyone if he returns to Jordan.  It follows that it is not satisfied on the evidence before it that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to Jordan.”

16. The applicant applied for review of the Tribunal’s decision from this court and on 8 November 2012 filed an Amended Application. There were four grounds. 

    Ground one is:

    “That the Tribunal applied the wrong test in relation to the complementary protection provisions contained at section 36(2)(aa) of the Migration Act 1958.”

    The applicant’s case in respect of this ground is that the Tribunal applied a characterisation of refugee criterion at [11] and [12] [CB 214] both to the claims under s.36(2)(a) and 36(2)(aa). The Tribunal was mistaken because the test relating to the refugee criterion required the applicant’s fears to be grounded in Convention related reasons when that is not a necessary requirement for a fear under complementary protection.  The applicant submits:

    “[18]In confining the issues to the latter test under complementary protection, the applicant submits that the decision by the Tribunal has failed address the question posed by the statute – namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

17. At [19] of the submissions the applicant argues:

    “[19]       The applicant submits:

    (a)At paragraph [1111] of the decision, the Tribunal accepted that the applicant “was the victim of a severe beating in Jordan”. [CB 231-232]

    (b)The Tribunal then made a finding, at paragraph [112], that the “essential and significant reason” for the attack on the applicant was “personal and individual.” [CB 232]

    (c)The Tribunal then concluded at paragraph [117] in similar terms, with the finding becoming a “make weight” in the findings contained at paragraph [121] – that “it is not satisfied that the applicant has a well-founded fear of persecution in Jordan, within the meaning of the Refugees Convention”.  [CB 234]

    [20]The Tribunal then effectively “transposed” this finding, at paragraph [122] of the decision, to the alternative criterion anticipated in the complementary protection provisions contained at section 36(2)(aa).”

18. The finding of the Tribunal at [122] [CB 234] has been extracted at [15] of these reasons. The applicant submits that this finding is bound up in the application of the criterion anticipated by s.32(2)(a) of the Act as opposed to the new criterion anticipated by s.32(2)(aa) which does not require a relevant nexus to a Convention related reason.

19. I am afraid that I cannot agree with the submissions made by the applicant upon the facts of this case. I accept, as does the Minister, that if the Tribunal had applied Convention criteria to the decision on complementary protection it would have been in error. But the finding that the Tribunal made is clear, it did not consider that there would be a real risk that the applicant would suffer significant harm if he was removed from Australia to Jordan. The reason for coming to that conclusion, which is a conclusion in the terms of s.36(2)(aa), is because the Tribunal was not satisfied that the applicant would be harmed by any one if he returns to Jordan. If no harm could be identified then there is nothing to which the criteria can attach. The Tribunal based its views about the lack of harm upon available evidence and upon its assessment of the harm the applicant claimed to fear. This was harm from the family of the woman with whom he was associated. There is no claim in respect of harm from any other person. For the reasons which have already been discussed the Tribunal did not accept that harm was likely to occur, whether for a Convention reason or otherwise. The applicant had remained in the country for some months after the initial assault upon him yet nothing had happened to him. The Tribunal was entitled to assume that nothing would happen to him should he return some years later.

1. The second ground of application was:

   Ground two:

   “The Tribunal took into account an irrelevant consideration. 

   Particulars

   In holding that the “essential and significant reason” for the attack on the applicant was “personal and individual” at paragraph [112] and later holding that it “has found that it is not satisfied on the evidence that the applicant will be harmed by anyone if he returns to Jordan” the Tribunal took an irrelevant consideration into account.”

2. In regard to this ground the applicant says that it is not relevant under the complementary protection provisions what the essential reason for the attack was and that the Tribunal had rolled over its finding in respect of the Convention claims and thus applied the incorrect test.  This appears to be another way of expressing the first ground and for the reasons already given I am of the view that it is not made out.

3. Ground three and four are in the following form.

   Ground three:

   “That the full integers of the applicant’s claim were not taken into account, namely the claim advanced by the applicant was not considered in respect of complementary protection; and

   Ground four:

   That the Tribunal failed to engage in an active consideration of the applicant’s claims in respect of complementary protection.”

4. As the matter was argued before me this referred to the claim made at [35] [CB 172] extracted at [6] of these reasons and particularly [39] [CB 174] extracted at [6] of these reasons.  At first sight there appears to be some merit in this argument because those claims were clearly made on the part of the applicant by his representatives and one would expect them to be dealt with in terms.  However, that requirement must be taken within the context of the applications as a whole.  In this case the applicant’s opinions were never made manifest but were claimed to be imputed to him by “N’s” family.  It came about in the context of his liaison with “N”.  There was no evidence of any other basis for it.  The Tribunal found that the family’s reaction to what occurred was purely a personal one based upon the harm done to it as a family and “N” as a woman although it was perhaps aggravated by the fact that the applicant was a Christian.  If the claims are seen in this context then they were dealt with by the Tribunal in a very thorough way.  The Court is of the view that they must be considered in this context because the applicant’s only evidence of significant harm arose out of those events.  The nub of the claim under paragraph [39] is:

   “Independent country information confirms that the types of significant harm feared by the Applicant upon his return to Jordan are frequently visited upon those who have supposedly committed moral crimes.”

5. The type of significant harm referred to by the applicant was being assaulted and possibly killed by “N’s” family but the Tribunal specifically made a finding that that would not occur and thus it cannot be said that this element of the claim was not dealt with.

6. The applicant relies heavily on what fell from Judge Driver in SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7[2].  In that case his Honour was dealing with an application for judicial review from a Faili Kurd from Iran who claimed to have suffered mistreatment at the hands of the Iranian authorities and in particular the “Basij” for causes which he believed were specific to persons of the particular social group of undocumented Faili Kurds.  He claimed that he had been arrested, detained and seriously assaulted before being released, that he was constantly being asked to produce his identification documents and insulted when they were unavailable.  His mother was assaulted at a checkpoint and when he complained he was also assaulted.  He was assaulted whilst working as a street vendor of clothing and this father had been beaten.  The Reviewer accepted that three incidents where he claimed to have suffered physical harm occurred.  The Reviewer recognised that the applicant had not made claims of facts specific to complementary protection, rather his case was based on the same evidence as his refugee protection claims.  Judge Driver rightly pointed out that this made it necessary for the Reviewer to identify from the account those incidents that were conceivably relevant to significant harm which he believed should be clearly considered as a separate head of claim to the Convention related harm considered under s.36(2)(a).  Judge Driver had found at [90]:

   “[90]The problem with this reasoning is that the Reviewer makes no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa). This is particularly problematic in the present case, where the Reviewer has accepted claims of detention and assault, but rejected a number of the claims on the basis of the absence of a Convention nexus or for some other reason peculiar to the Convention.

   At [91] his Honour gave instances to support his conclusion and opined at [92]:

   “[92]Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s.36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision.

   [2] “SZSFK”

7. Although Judge Driver found at [96] that the Reviewer had evaluated whether the incidents he had found to have occurred might reoccur and gave reasons for a negative conclusion he did not accept that the complementary protection was independently and adequately considered.  At [97] his Honour said:

   “[97]On balance, I prefer the submissions of the applicant on this ground. It was open to the Reviewer to deal with the complementary protection criterion in a self contained way in part of his report. He chose, at [72] to emphasise what he saw as the “non systematic or targeted” threat to the applicant. This could have been a reference to s.91R(1)(c) of the Migration Act (which the parties agree is not relevant to the complementary protection criterion) or it could have been a general reference intended to quantify the risk. The use of the word “systematic” is problematic. Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the Reviewer at [75] on unspecified “findings set out above” is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).

   [98]In my view, the combined effect of these difficulties with this aspect of the report is to establish reviewable legal error as alleged by the applicant.”

8. It is my view that the instant case can be distinguished from SZSFK because the factual finding made by the Tribunal in respect of the cause of the applicant’s beating was clearly a personal matter that only had the most tenuous links to the Convention. The possibility of the harm reoccurring was considered in detail. It was dismissed for reasons of lack of Convention nexus upon the basis of evidence given at the hearing. The assessment of that evidence left the Tribunal in little doubt that no harm would come to the applicant should he be returned to Jordan. This finding has already been used by me to indicate a consideration of both the test under s.36(2)(a) and 36(2)(aa). Whilst I agree with Judge Driver that more should be done by these Tribunals to indicate they have clearly made a determination upon the evidence in relation to s.36(2)(aa) by reference to that sub-section’s specific tests, I believe that in this case the failure is more one of form than one of substance.

9. In these circumstances I am unable to provide the applicant with the review he seeks.  The application shall be dismissed and the applicant must pay the first respondent’s costs assessed in the sum of $5,800.00.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Date:  14 June 2013